Israel Supreme Court Overturns Copyright Ruling Concerning Grammar Textbooks

Rivka Motzi, Michal Shachar and Reches Education Publishing LTD published a couple of grammar textbooks for matriculation in Hebrew Grammar.

Both Rivka Motzi and Michal Shachar are experienced grammar teachers. So is Rachel Kabli, who had previously published a range of textbooks.

Judge Pilpel of the Tel Aviv District Court (Court of First Instance) ruled that 6 of Kabli’s textbooks were infringed by Motzi and Shachar’s text, and ruled statutory damages of 20,000 NIS x 6 under the old copyright ordinance. She discounted 10,000 NIS as n one case the publisher who was a co-defendant apparently had rights in the first set of texts, and so found literal infringement of 110,000 NIS. She went on to find moral rights infringed as well, and so doubled this award.

On grounds of Unjust Enrichment and pain and suffering, she ruled a further 300,000 NIS, giving a total award of 520,000 NIS plus a further 50,000 NIS in legal expenses to the plaintiffs.

On appeal, the plaintiff tried to show further cases of infringement regarding teacher’s aids, and to up the damages. The defendants argued that one should consider the works as a whole, not look at examples in isolation and also argued that one was not entitled to statutory and actual damages.

Supreme Court ruled in favor of the defendants that one could not fairly be awarded statutory and actual damages.

The decision, written by Y Amit, emphasized that although copyright subsists in works concerning highly technical subject matter such as grammar text books,  it is not pedagogic tools or concepts that are copyright protected, but rather the expression of these.

The Supreme Court also went on to rule that when considering copyright infringement of literary works one has to consider the work as a whole and not simply look for points of similarity. The judges noted that the subject matter is defined by the rules of the language and the matriculation syllabus set by the Ministry of Education. Conceptually, it makes perfect sense to arrange verb construction tables in order from simplest to hardest, and even if one author was the first to realize that the so-called Kal – Simple Verb Construction, is actually the most difficult, this is factual and there is no copyright protection in the discovery. Similarly, choosing to conjugating a particular verb, such as that for harvesting olives, because of its exemplary nature in demonstrating an irregularity is not the type of thing that copyright extends to.

Summarizing a chapter’s content with flowcharts is another example of a pedagogic tool that cannot be protected. The Judge noted that the actual flowcharts were different, and thus one was not a copy of the other. Other competing grammar texts were examined and the Appeal judge felt that the allegedly infringing texts were at least as similar to those as to the textbooks of the plaintiff.

After an erudite and highly grammatical analysis, Judge Amit went on to throw out the claims totally and to award the defendants 100,000 NIS in legal fees. Judges Fogelman and Chayot concurred.

The Case: Appeal and Counter-appeal to Supreme Court re 10242/08 Motzi, Shachar and Reches Education Publishing LTD vs. Kabli, decided 10 October 2012.

COMMENT

We note that Judge Pilpel has got IP Law, specifically Passing Off ‘ trademarks and design law wrong in the past. See here  and  here.

We think that the Supreme Court’s reasoning is correct. I have not reviewed the various grammar texts and since my wife is a native Israeli and I am an immigrant who studied Hebrew in Ulpan aged 24, I shall let my wife help the kids with their matriculation in Hebrew Grammar, and concentrate on trying to explain the peculiarities of English to them.

This case may have ramifications on the Shapiro vs. Ragen plagiarism case that is on appeal to the Israel Supreme Court.

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